SECRECY IN DISCOVERY AND SECRECY AT TRIAL ARE TREATED DIFFERENTLY.

In In re: Bard IVC Filters Prod's Liab. Litig., No. MDL 15-02641-PHX-DGC, 2020 WL 1070328 (D. Ariz. March 5, 2020), the District Court faced questions of secrecy claims over discovery materials and also secrecy claimed for trial exhibits. Like most Courts, this one treated the questions differently: Most Courts are willing to indulge secrecy in pretrial discovery but not for exhibits introduced in evidence at trial.

    First, the parties submitted a Stipulated Protective Order "governing the designation, handling, use, and disclosure of confidential discovery materials[.]" As is usual with such stipulated orders, the determination of "confidentiality" was made in the first place by the parties and their lawyers.

    Then a Case Management Order (CMO) "governed redactions of material from additional adverse event reports, complaint files, and related documents in accordance with" HIPAA.

    Third, the parties and their lawyers crafted another SPO specifically for Electronically Stored Information (ESI). "[T]o expedite production of ESI, the parties agreed to a primarily 'no-eyes-on' document production as to relevancy while still performing a privilege review for this expedited ESI document production." A CMO was amended apparently to accommodate this SPO.

    Thereafter the Court conducted three bellwether trials or demonstration trials. In Multi-District Litigation like this MDL, these trials offer a sampling of the likely outcomes. The Court in this case denied the defendants' motion to seal trial exhibits and otherwise to keep them confidential as to each of the three cases that were tried. "A list of exhibits admitted at the bellwether trials (excluding case-specific medical records) and documents deemed no longer subject to the protective order are attached as Exhibit 2." In re: Bard, 2020 WL 1070328, at *7.

    Familiarity with the principles of law is presumed here. The Court did not engage in a long discussion of them. Instead the Court ruled and the context of its rulings are known to people familiar with the principles of law they reflect. This opinion is very much worth reading for the outcomes in this regard.

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